If you have a child turning 18, it is important for that child to create some basic estate planning documents. Many parents do not realize that once their children turn 18, the parents can no longer access protected health information or make decisions for their child. Parents usually discover this when their child’s doctor’s office stops communicating with them or releasing any information without authorization from the child.

Upon the child turning 18, the parents can no longer:

1. Receive information from medical providers without authorization (this is specifically prohibited under the Health Insurance Portability and Accountability Act of 1996 “HIPAA”);
2. Make healthcare decisions for the child;
3. Access financial information for the child, including financial accounts at a college bursar’s office;
4. Manage a child’s assets such as transferring money between accounts, making investment decisions, etc.
5. Apply for government benefits on behalf of the child.

Many 18 year olds still value the assistance parents can provide and would, if given the choice, authorize their parents to receive information and make the decisions outlined above. There is a legal solution to this problem – the child should create an estate plan. 18 year olds do not necessarily need a complicated plan, but at the bare minimum they should create the following documents:

• Power of Attorney for Healthcare. This document allows the child to appoint an agent who will make healthcare decisions for the child if the child becomes incapacitated.
• Power of Attorney for Property. This document allows the child to appoint an agent who will make financial decisions for the child. This can be an immediate grant of authority, or a “springing” power that only comes into effect if the child becomes incapacitated;
• HIPAA Authorization. This document allows a child to list individuals who can receive their HIPAA protected healthcare information.

If your child puts these documents into place and names you as agent, you can continue assisting your child with their healthcare and financial accounts. Our law firm recommends that any child going away to college should put these documents into place in case something should happen to the child and the parents need to access information and make decisions.

What happens if the powers of attorney are not put in place and something happens to the child?

The answer is guardianship court. Guardianship is a court-directed legal process for appointing an individual to make financial and health decisions for an incapacitated individual. Guardianship court can be an expensive process, and it requires the direct oversight of a Judge. The individual who gets appointed guardian is chosen and overseen by the court. The court does typically appoint a close family member, but not always. The court requires status reports regarding the health of the incapacitated individual “referred to as the ‘ward’”, along with an inventory of assets and accounting. Any big decisions to be made over the ward, including residential placement, big expenditures of the funds, etc. are required to be approved by the court beforehand. As you can see, guardianship has many significant drawbacks. Fortunately, in many cases guardianship can be entirely avoided by having powers of attorney in place.

Have Your 18 Year Old Create Powers of Attorney with Johnston Tomei Lenczycki & Goldberg LLC

If your child has turned 18 and they want your continued assistance with healthcare and finance, have your child reach out to our office to schedule an appointment to create their powers of attorney. Our Libertyville estate planning lawyers will offer a free consultation with the child and will create powers of attorney and a HIPAA authorization at the child’s direction. We offer flat fee pricing for our powers of attorney package of documents (includes power of attorney for property, power of attorney for healthcare, HIPAA authorization). Call us today at 847-549-0600 to schedule a consultation.